STATE OF MISSOURI v. RICHARD NEIL BURKETT

• Court: Missouri Court of Appeals
• Decided: March 17, 2025
• Docket: SD38459
• Status: Published

Opinion

In Division

STATE OF MISSOURI, ) ) Respondent, ) No. SD38459 ) v. ) Filed: March 17, 2025 ) RICHARD NEIL BURKETT, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

Honorable William E. Hickle, Judge

VACATED AND REMANDED FOR NEW TRIAL

Richard Neil Burkett appeals his convictions of assault in the first degree and

armed criminal action, following a jury trial. In two points, Burkett argues the trial court

plainly erred in: (1) failing to give a self-defense instruction even though defense counsel

did not request such an instruction; and (2) failing to intervene and give a curative

instruction after the State argued in closing arguments "that [the first-degree assault

instruction] did not require the State to prove [Burkett's] intent." Because there was

substantial evidence to inject the issue of self-defense into the case, we agree with

Burkett that the self-defense instruction should have been given and that the failure to give such an instruction resulted in a manifest injustice. Point 1 is granted and is

dispositive of this appeal.

Standard of Review and Applicable Law

Burkett acknowledges his points are not preserved for our review. Generally, we

do not review unpreserved claims of error. State v. Brandolese, 601 S.W.3d 519, 525

(Mo. banc 2020). Rule 30.20 creates an exception and gives us discretion to review

"plain errors affecting substantial rights . . . when the court finds that manifest injustice or

miscarriage of justice has resulted therefrom." Brandolese, 601 S.W.3d at 526 (quoting

Rule 30.20).1 Plain-error review is a two-step process. State v. Mills, 687 S.W.3d 668,

675 (Mo. banc 2024). The first step requires us to determine if the claim of error

"facially establishes substantial grounds for believing that manifest injustice or

miscarriage of justice has resulted." Id. (quoting State v. Minor, 648 S.W.3d 721, 731

(Mo. banc 2022)). "[T]he failure to instruct upon a defense supported by the evidence is

plain error affecting substantial rights." State v. Jones, 686 S.W.3d 293, 304 (Mo. App.

E.D. 2024) (quoting State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002)). If plain

error is found, we then proceed to the second step and determine whether the claimed

error resulted in manifest injustice or a miscarriage of justice. Id. at 301.

"Instructing a jury on claims of self-defense is a well-recognized right of persons

charged with violent criminal conduct." State v. Clement, 661 S.W.3d 396, 403 (Mo.

App. E.D. 2023). Even if a defendant does not request a self-defense instruction, the trial

court must instruct the jury on self-defense if there is substantial evidence to support it.

1 All rule references are to Missouri Court Rules (2024).

2 Westfall, 75 S.W.3d at 281 n.9; see also Missouri Approved Instructions-Criminal 4th

406.06 n.3 ("Whenever there is evidence supporting this defense, this instruction must be

given.") (emphasis added). In fact, if there is substantial evidence of a justification

defense, the trial court must give the instruction even if the defense objects to the

instruction and it is inconsistent with the defendant's defense. State v. Endicott, 600

S.W.3d 818, 828 (Mo. App. E.D. 2020). "Substantial evidence" means evidence putting

the matter in issue. State v. Whipple, 501 S.W.3d 507, 513 (Mo. App. E.D. 2016). In

determining if there was substantial evidence supporting a justification instruction, we

consider the evidence in the light most favorable to the defendant. State v. Weems, 840

S.W.2d 222, 228 (Mo. banc 1992). "Substantial evidence is 'any theory of innocence . . .

however improbable that theory may seem, so long as the most favorable construction of

the evidence supports it.'" State v. Barnett, 577 S.W.3d 124, 128 (Mo. banc 2019)

(quoting State v. Kinard, 245 S.W.2d 890, 893 (Mo. 1952)). "If the evidence tends to

establish the defendant's theory, or supports differing conclusions, the defendant is

entitled to an instruction on it." State v. Bruner, 541 S.W.3d 529, 535 (Mo. banc 2018)

(quoting Westfall, 75 S.W.3d at 280). "[S]ubstantial evidence of self-defense requiring

instruction may come from the defendant's testimony alone as long as the testimony

contains some evidence tending to show that he acted in self-defense." Id.

Background

This case arises out of an altercation between Burkett and his brother-in-law

("Victim") at a convenience store where Burkett pointed a gun at Victim's head and

pulled the trigger. The case proceeded to jury trial, where the following evidence was

adduced.

3 Victim's Testimony

According to Victim, Victim saw Burkett, his brother-in-law, at a convenience

store and confronted him about having brandished a weapon at members of the local

Amish community. At that time, Burkett was living in a guesthouse on Victim's

property. Victim told Burkett he would need to move out of the guesthouse. Burkett

then accused Victim of "saying something rude about his girlfriend" and "tried to

headbutt" Victim. Victim and Burkett started wrestling, but were separated by two young

men. After they were separated, Burkett pulled out a semi-automatic handgun, pointed it

at Victim's head, said "[y]ou're a dead mother fucker[,]" and pulled the trigger. The gun

clicked but did not fire. Burkett tried to unjam the gun. Victim testified that the owner of

the convenience store ("Storeowner") pulled out a shotgun and ordered Burkett to leave.

Storeowner's Testimony

Storeowner testified that he was at the store the day of incident, that Burkett

struck Victim first, that Burkett pulled out a gun, pointed it at Victim's head, and pulled

the trigger. The gun clicked but did not fire. According to Storeowner, Burkett

manipulated the gun like "he was trying to unjam it," and a "shell" fell on the floor.

Storeowner explained he then pulled out his own shotgun and ordered Burkett to leave.

Bystander's Testimony

A bystander who witnessed the incident also testified. According to bystander,

Burkett and Victim got into "a little fisticuff." Afterward, "all of a sudden, out of

nowhere, [Burkett] pull[ed] a gun and put[] it at [Victim's] temple." Burkett pulled the

trigger. The gun clicked but did not discharge. Storeowner pulled out a shotgun and

ordered Burkett to leave.

4 Burkett's Trial Testimony

At trial, Burkett provided a different account of events than Victim, Storeowner,

and Bystander, and claimed Victim pointed a shotgun at him. Burkett testified that he

pulled out his gun after Storeowner handed Victim a shotgun and said, "here, shoot

him[.]" According to Burkett, it was only after Victim aimed the shotgun at him that

Burkett pointed his gun at Victim. Burkett testified he was scared for his life and felt like

he was being attacked and threatened. He denied striking Victim first and claimed he

"pulled [the gun] on self-defense." Burkett further claimed the gun was unloaded, that he

did not have any ammunition to load it, and denied pointing the gun at Victim's head or

pulling the trigger. When asked why he changed his story to police, Burkett said he did

so because the officer told him there was video evidence. 2 Burkett said he fled the

county because he had outstanding warrants.

The State submitted a verdict director for assault in the first degree, but no

instruction was given as to self-defense. Defense counsel did not object to the

instructions submitted by the State and offered no additional instructions.

The jury found Burkett guilty of assault in the first degree and armed criminal

action.

2 An officer who interviewed Burkett prior to trial also testified at trial. According to the officer, during the interview, Burkett changed his story multiple times. Burkett initially claimed Victim took Storeowner's shotgun and pointed it at Burkett. After the investigating officer said he did not believe Burkett's story, Burkett stated Victim never had the shotgun but Burkett drew his gun because he thought Victim was going to get Storeowner's gun. The officer again told Burkett he did not believe Burkett's story and that the store had cameras. Burkett admitted he struck Victim first and then Victim grabbed him by the throat. Burkett also admitted he pulled a gun and pointed it at Victim, but denied pulling the trigger because it was unloaded. Burkett said he tried to load the gun after Storeowner pulled out his shotgun. Burkett claimed he only wanted to scare Victim. 5 Analysis

Burkett claims the trial court plainly erred in failing to sua sponte give a self-

defense instruction to the jury. 3 "If the defendant injects self-defense into the case and

there is substantial evidence to support a self-defense instruction, it is reversible error for

the trial court to fail to submit a self-defense instruction to the jury under plain error

review." State v. Bolden, 371 S.W.3d 802, 805 (Mo. banc 2012).

The ability to assert self-defense as a justification to a violent offense is found in

section 563.031 which authorizes a person to:

use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person[.]

§ 563.031.1, RSMo (2016). Self-defense requires "a real, specific, actual and immediate

threat of bodily violence to which the defendant's actions are an appropriate and

proportional response." State v. Seals, 487 S.W.3d 18, 23 (Mo. App. S.D. 2016) (internal

citation omitted). "To justify the use of deadly force, '[s]ome affirmative action, gesture,

or communication by the person feared indicating the immediacy of danger, the inability

3 The State argues Burkett's point fails because he invited error and thus waived his plain error claim by not objecting to the State's jury instructions and because the failure to request the instruction was trial strategy. These arguments are unpersuasive. While it is true that, in certain contexts, counsel's statement of "no objection" waives plain-error review, it does not waive claims related to instructional error. See State v. Celis-Garcia, 344 S.W.3d 150,154 n.3 (Mo. banc 2011). Nor is this a case where Burkett's counsel actively collaborated in drafting the instruction he now asserts was erroneous. See State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) ("A defendant invites error and waives appellate review of a claim of instructional error when the defendant jointly proffers an erroneous instruction."). "Unless and until the Supreme Court re-evaluates the availability of plain error review of jury instructions in a criminal case, particularly where the defendant has affirmatively expressed no objection to the instructions[,] . . . we are without authority to conclude that plain error review has been waived." Jones, 686 S.W.3d at 302 (quoting State v. Coyle, 671 S.W.3d 702, 712 (Mo. App. W.D. 2023)). Finally, "a trial court does not commit plain error for failing to take action when the record clearly indicates that the defendant's counsel strategically allowed that action." State v. Beerbower, 619 S.W.3d 117, 126 (Mo. App. S.D. 2020) (quoting State v Snyder, 592 S.W.3d 375, 381 (Mo. App. S.D. 2019)). But the record before us does not clearly indicate the failure to request a self-defense instruction was trial strategy.

6 to avoid or avert it, and the necessity to use deadly force as a last resort must be present.'"

State v. Hill, 697 S.W.3d 885, 890 (Mo. App. E.D. 2024) (quoting State v. Sinks, 652

S.W.3d 322, 352-53 (Mo. App. E.D. 2022)).

Viewed in the light most favorable to Burkett, there was substantial evidence to

put the issue of self-defense before the jury. Burkett testified he pulled his gun out after

Victim aimed a shotgun at him. Burkett denied being the initial aggressor and claimed he

was scared and acting in self-defense. This evidence was sufficient to inject the issue of

self-defense into the case. Failure to give a mandatory instruction is grounds for reversal

on plain error review. Jones, 686 S.W.3d at 307. Accordingly, the trial court's failure to

instruct the jury constituted plain error and we must determine if the failure to instruct the

jury in this case resulted in manifest injustice.

While the jury heard evidence that Burkett may have acted in self-defense, it was

not given any means by which to apply that evidence to the verdict. The failure to

provide the jury with complete instructions deprives us of the ability to determine

whether the jury found Burkett guilty on a correct and lawful basis. Because the jury was

not instructed on the issue of whether Burkett acted in self-defense, they were unable to

consider all legal theories supported by the evidence. "By omitting a defense instruction

supported by the evidence, 'the trial court completely relieve[s] the State of its burden to

prove beyond a reasonable doubt that [the defendant] was not justified in using force[.]'"

Id. at 308 (quoting State v. Seay, 256 S.W.3d 197, 201-02 (Mo. App. E.D. 2008)).

"Manifest injustice results when a defendant meets his burden of injecting the issue of

self-defense into the case but the trial court does not submit an instruction on the issue to

the jury regardless of whether the defendant requests the instruction." Id. at 307-08

7 (quoting State v. Morrow, 41 S.W.3d 56, 59 (Mo. App. W.D. 2001)). Burkett has met his

high burden of demonstrating reversible plain error.4 Point 1 is granted.

Conclusion

Burkett's convictions are vacated, and the cause is remanded to the trial court for a

new trial.

MARY W. SHEFFIELD, J. – OPINION AUTHOR

JENNIFER R. GROWCOCK, C.J. – CONCURS

JEFFREY W. BATES, J. – CONCURS

4 We acknowledge there was significant evidence of Burkett's guilt in this case. Three witnesses testified Burkett pulled a gun out first, pointed it at Victim's head, pulled the trigger, and that Victim never had a gun. Burkett also fled the scene, got rid of the gun, and gave inconsistent statements to law enforcement. Only Burkett claimed Victim had a gun and aimed it at Burkett before Burkett drew his gun. The State's evidence, from our vantage point, appears stronger than Burkett's. But "[w]hen a jury is not properly instructed, appellate courts are left to conjecture about whether the defendant was found guilty on a correct and lawful basis." Jones, 686 S.W.3d at 308.